We Cannot Avoid the Ugly Tradeoffs of Bail Reform

Many people think that “innocent until proven guilty” implies that everyone should be let loose on their own recognizance before trial. A moment’s thought reveals that this is idiotic. The white supremacist Dylann Roof killed nine people on June 17, 2015 at the Emanuel African Methodist Episcopal Church. His image was captured on security cameras and he was arrested the next day. Roof’s trial, however, didn’t start until more than a year later, December 7, 2016, and he wasn’t convicted of anything until December 15, 2016. Should Roof have been released before trial because he was “innocent until proven guilty”? Of course not. I stand second to none in demanding high standards before the state can deprive a person of their liberty but high standards do not demand binary divisions. Tradeoffs are everywhere and when the evidence against the accused is strong and the danger to the public is high, it’s not unreasonable to deprive the legally innocent of some liberty prior to trial. The tradeoffs are ugly, as they always are when trading off two sacred values, but the tradeoffs cannot be avoided.

Consider now the issue of bail reform. In the days when the default was that every accused person was held before trial, the idea of money bail was seen as a liberal, progressive measure that allowed more people to get out of jail. Today the natural default is seen as release until trial and bail is therefore perceived as a conservative, regressive measure that unjustly and unfairly keep poor people in jail. As a result, reformers are trying to reduce or eliminate money bail but they are doing so without thought for the ugly tradeoffs.

The bail reformers frame the issue in a way that I think is misleading. Anytime someone can’t pay for bail they call that “unaffordable bail”. Well that’s literally true but it also gives an incorrect impression of destitute people being denied their freedom because they don’t have a buck. To be sure that does happen but here’s an open secret of the judicial process. Judges sometimes set bail expecting and indeed hoping that it won’t be affordable. Everyone knows this but the bail reformers don’t like to acknowledge it because it brings up the ugly tradeoffs. Consider the following, from Chicago, where the bail reform movement is very active:

…there are about 2,700 people being held in jail because they can’t afford bail but [the Chicago court official noted] 87 percent had a current violent or weapons-related charge, a risk assessment recommending “maximum conditions” if released, an assessment flagging them for violence, and/or an active probation or parole case.

In other words, the judges set a high bail amount for a reason. Under orders from the Chief Judge, however, Chicago has been trying to reduce bail:

Chicago and its surrounding county was supposed to be a beacon of bail reform. After Cook County Chief Judge Timothy C. Evans imposed new rules and made sweeping changes to the bench, advocates hoped that virtually no one would be jailed because they didn’t have the money to make bail.

…At first, it seemed to have the intended effect: In the first month after the order, the number of people who had to post money bonds dropped by more than half, while the number of people who were released on their own recognizance—allowed to leave upon promising to return for trial—doubled. Bail amounts also decreased, as did the number of people in jail.

So what happened when bail reform met reality? Under the new system, judges that set a lot of “unaffordable” bail looked bad but most of the people who can’t pay their bail can’t pay not because they are especially poor but because the judge thought that they were a danger to the public. Judges continue to believe that many defendants are dangerous but now rather than setting bail they simply deny bail altogether. In fact, under the new system the rate of denying bail has risen fourfold. In addition, judges soon discovered that the cost of releasing defendants in terms of crime, failure to appear, and perhaps bad publicity was too high so they started to ignore the demands of the Chief Judge.

…But a year later, [the Coalition to End Money Bond] found that not only are judges still setting bail amounts that defendants can’t afford—meaning that more than 2,700 people are in Cook County Jail because they don’t have enough money [recall these are the 2,700 with serious records, AT] —but that things are getting worse. The initial gains “have steadily evaporated and bond court outcomes are now approaching pre-Order levels,” the report states. The authors note that if judges were sticking to the order, there would be no bail amounts set at levels that defendants can’t afford; instead, it says, nearly 30 percent of bail amounts were unaffordable. Between November 2017 and June 2018, judges set unaffordable bail amounts for more than 1,350 people.

Bail reformers are blind to the tradeoffs that must be made between public safety and the rights of defendants. Since the reformers are blind to these tradeoffs they can’t see that money bail actually helps to alleviate these tradeoffs. Reformers think that money bail simply keeps the poor in jail but in fact money bail is a half-way house between release on own recognizance and hold until trial. Money bail lets judges release more people. Bail reformers assume that if they eliminate money bail then judges will release everyone. In fact, as the Dylann Roof case illustrates, that is never going to happen. And when the public realizes that judges are releasing lots of defendants who subsequently commit more crimes there will be a backlash, as is already evident in Chicago. By eliminating the half-way house of money bail, bail reformers force judges to either release or hold until trial. Some people who under the current system are released on bail will, under the new system, be held until trial. Indeed, the unintended consequence of bail reform may be that more people are held until trial with no possibility of release.

Sometimes poor people are unfairly held until trial. Eliminating money bail, however, is a crude and dangerous approach to this problem. Instead we should deal with it directly by flagging and reevaluating jailed, non-violent offenders with low bail amounts, use alternative release measures such as ankle bracelets and most importantly, we should look to the constitution. The founders understood the ugly tradeoffs which is why the constitution guarantees the right to a “speedy trial.” Unfortunately, that right today is widely ignored. My route to reform would begin by putting teeth back into the constitutional right to a speedy trial.

Addendum: Illinois doesn’t allow commercial bail so I haven’t mentioned bounty hunters but in other parts of the country their role in the criminal justice system is important, even if widely misunderstood and disparaged. My paper (with Eric Helland) shows that bounty hunters are more effective than the police at recapturing escaped defendants. More specifically, compared to similar defendants released using other methods, defendants released on commercial bail are much more likely to show up at trial and are much more likely to be recaptured should they flee. See also my adventures as a bounty hunter.

Comments

Martinned

If the judge doesn't think someone should be set free, they should have the courage to deny bail. The rest of the time bail should be within the means of the defendant to pay.

Otherwise, I offer a suggestion from the more civilised side of the Atlantic (at least as far as crime and justice is concerned): In many European countries a defendant who was detained before trial and then acquitted is entitled to a standard payment for every day they were in jail. That's not only fair, it also provides prosecutors with an excellent incentive not to seek pre-trial detention unless they think they have a strong case.

Nicholas

This is only reasonable if prosecutors have a fixed budget per case. Otherwise they can spend unlimited resources ensuring convictions for defendants who might have a claim. The latest season of serial has an episode devoted to this perverse insensitive structure.

Boonton

I tend to agree as well. The reform schemes I'm aware of generally put defendants into a classification system. If they are deemed a high risk of flight/danger, they are denied release and sit in jail until trial. In between get something like ankle braclets and the majority are released until trial.

A potential problem with 'reform' might be that many poor defendants who would have simply done bail and then either took a plea or showed up at trial are now thrown into a risk category and made to sit in jail until their case is resolved.

I have a simple proposal. Allow anyone deemed a danger by the new system to opt for the traditional bail system. A judge will hear them and either set bail or deny it entirely if he deems them a real risk.

Note this is a side effect of the collapsing crime rate. Fewer crimes means the system doesn't have to be as clogged with cases and we can do things like release with less use of bail.

chuck martel

How? What difference does it make to the DA in terms of time? Is he going somewhere? Is there a clock running on the prosecution? Does the DA have a fixed budget that must be allocated to cases by some financial formula? If nobody has strangled a neighbor or stolen a car in the last week do DA employees get laid off? In fact, no cases are ever settled for lack of government funds to carry on the prosecution.

Anon

Yes indeed the DA is up against a clock and a budget. But pprobably more importantly the DA is a political animal and would prefer to try cases that will bring him/her acclaim. So they must pick and choose and every time they can plea bargain a simple case it saves them time, money and the risk of doing something that could get them negative publicity.

Boonton

Indeed, it costs a lot of house people in jail. A DA who makes sure 1,000 people sit in jail for six months in order to extract slightly higher punishments from them in plea deals is spending a huge amount of taxpayer money. This seems like a very poor incentive structure to me.

chuck martel

One of the most effective routes to a position in Congress is via the prosecutor's office, a high-profile position with generally extensive positive media coverage.

47 prosecutors (12 in the Senate, 35 in the House) who have served in city, county, state, federal, or military capacities https://fas.org/sgp/crs/misc/R44762.pdf Voters are enthusiastic about lawyers that send people to jail.

Transnational Pants Machine

>entitled to a standard payment for every day they were in jail. That's not only fair...

With all due respect, up yours. When the Government shafts someone, and it is determined that reparations are in order, the solution is NOT to use taxpayer funds provided by honest, hardworking people who have done nothing wrong.

Now -- if you want to say that all pertinent Government employees have to set aside 5% of their salary into a fund that is used to buy insurance for these screw-up reparations... you'd be onto something.

AngryAnalyst

I agree with you that money damages paid by the state are generally problematic. I’m not sure a money payment for acquitted defendants is especially bad relative to payments for abuses by police or verdicts against other public officials operating in their official capacities.

I would also generally agree that it would be good to shift the burden of money damages currently paid by the state on to the involved individuals. For example, in cases of egregious prosecutorial misconduct it seems fair to me to try the DA for criminal false imprisonment and civil damages.

That said, the incentive effects of such a change are hard to game out. I am also generally supportive of holding public servants to professional “malpractice” standards if they knowingly lie or mislead the public, so I am perhaps a bit of an outlier on liability issues.

C

Jeremy

JFA

Ditto. Also, Alex makes this statement: "And when the public realizes that judges are releasing lots of defendants who subsequently commit more crimes there will be a backlash, as is already evident in Chicago." I didn't see any evidence in the linked articles to support the claim of defendants committing more crime after release, though I might have missed it. And if they do subsequently commit a crime upon release, we want to know the rate at which they do so, and weigh that against the various costs of the bail system.

Also, that 87% number includes the category "and/or an active probation or parole case". Given that the only reference for this statistic was from an email from the director of communications for the chief judge, I would withhold judgment as to the prevalence of violence among the 2700 people being held because they can't afford bail (they might be violent, but if that was what the director of communications wanted to point out, he could have just given the numbers on risk of violence).

This was one of Alex's weaker posts. Very unconvincing counter-argument to bail reform advocates.

Anonymous

I don't see how this changes anything. Simply saying "nonviolent crimes" lets a whole host of socially deleterious behavior, which diminishes social trust and thereby setting the stage for higher interpersonal violence, off the hook. If I arrest someone for criminal fraud, they have shown that they cannot be taken at their word: why should I expect them to honor their commitment to show up for trial unless they have some proverbial skin in the game?

The distinction between "nonviolent" and "violent" is arbitrary: serial identity theft is a lot more damaging socially and economically than someone nonlethally punching their neighbor.

byomtov

If I arrest someone for criminal fraud, they have shown that they cannot be taken at their word: why should I expect them to honor their commitment to show up for trial unless they have some proverbial skin in the game?

They do have skin in the game. If they don't appear and then get picked up they will be worse off than if they do show up.

I'd guess that speedy trials help here as well. It's probably easier to find someone who has been missing for three months than someone two has been missing for two years.

dan1111

Konstantinov Roman

Would you prefer if it was the proverbial african-american gangsta? Would you comment then? If the answer is no, you are racially charging, if the answer is yes, then you are a nitpicker. I wonder, if there is any worth to your comment in both of these cases?

Boonton

Just to emphasize that there are people we wouldn't want to see released after they are arrested. But I'm not sure how he contributes to the argument? I suspect under most bail reform systems he would be deemed both a flight risk and a violence risk hence denied release. No need for the theatrics of a hyperactive judge 'boldly' setting an absurd bail of millions of dollars.

Jeff R

Bernard Guerrero

I think it serves a purpose insofar as establishing motivation. Even a violent criminal might be expected, in most cases, to not commit another violent crime immediately upon release. A lot of violence is driven by momentary passions, chance encounters, etc.

Roof, OTOH, is ideologically committed and AFAIK has not expressed any remorse. Ergo, he might be expected, upon even a temporary release, to try and commit some more violence. The same would also hold for business-type violence (e.g. gang members in turf wars) where the desire and incentive for violence will hold over time.

Chris

If a speedy trial movement leads to lots of people being acquitted/released/pled out on lesser chargers because overburdened prosecutors have to go to triage mode, I'm not sure how that would have less blowback than accused who can afford bail getting released and committing more crimes.

albatross

What leads to the long times in jail before trial? Is this mostly because of clogged up courts? Or defense attorneys needing to reschedule things? Or police finishing up their investigation? Without knowing the cause of the delays, it's hard to know whether we can reasonably fix it.

Viking

This article is clearly incomplete. I come from a society where there is no bail, but sometimes a pre trial release.

From my perspective, when I learned about the concept of bail, it was clearly a very practical concept, the accused agrees to skin in the game, by putting at stake something of so great value that the loss of it would more than compensate the community for the crime. What is sorely lacking in Taborak's article is whether society would be better off keeping the bail than making an example of the accused, and being protected from the accused, with the cost of imprisonment. This is clearly an economic comparison, where severety of crime versus amount of bail is relevant, affordability, not so much.

I also agree with previous poster that those denying an accused of a speedy trial should be several punished, just like we punished the NSA chief for illegal surveillance of Americans, and perjury, because he violated Americans' constitutional rights. Oh, I guess we forgot about that.

Ray Lopez

@Viking - from your nym, you come from Scandinavia, which has very literal criminal laws, like Greece, where I have a passport from, which has such liberal criminal laws they allow murderers (who can only be imprisoned for seven years anyway, on their first offense) to travel home, unsupervised, for weekend visits to mom. I know of a mass murderer who was allowed this liberty, and one weekend, he completely disappeared.

Bonus trivia: a while ago, some actor along the lines of the Home Improvement guy (but not that guy) was arrested since bank robbers had used a rubber mask that was so lifelike, it looked exactly like him. Today technology exists to give a lifelike "Faceoff" type mask that makes you look like somebody else. Should we deny bail for such a frameup?

Viking

I come from Norway, where the maximum sentence is 21 years, and often murder or homicide sentences are much less than 21 years.

If masks are so good that there is no way to identify the robber, we need to revert to machine gun wielding guards in the bank, and take out the robbers, so a positive identification can be made post mortem.

Boonton

From my perspective, when I learned about the concept of bail, it was clearly a very practical concept, the accused agrees to skin in the game, by putting at stake something of so great value that the loss of it would more than compensate the community for the crime.

Yes the accused has skin in the game but does the system? One of the problems with bail is a poor person hit with a BS charge who has to choose either spending hundreds of dollars on a bail bondsman or losing his job, apartment, car, etc. waiting a few months in jail for a trial.

If you want to talk about skin in the game then say the prosecution gets one week to review the case. After that if the case goes nowhere, the bondsman fee comes out of their budget rather than the defendant.

CM

I agree with everything you say about the policy of eliminating bail but feel like you are in a different universe when it comes to your perception of bail reform advocates. Everything I have read - and I am a very casual observer of bail reform - emphasizes that judges should retain the ability to order pretrial detention of dangerous offenders. It would be much appreciated if you could identify the bail reformers who are blind to this issue.

Jonathan Witmer-Rich

It is odd to point to money bail as a "halfway house" between release and detention, because with money bail you are either released or detained, not held in some "halfway" condition. For those detained, money bail is not an improvement on a detention order. For those released, it is effectively an order of release, except with a financial incentive to show up to court in the future. That, however, has nothing to do with the defendant's dangerousness--the issue causing the backlash in Chicago.

Speaking as a bail reformer, I am not surprised to hear that detention orders rise when a system tries to reduce its reliance on money bail, due to judges ordering dangerous defendants detained rather than setting high bail amounts (to detain them). That's entirely predictable and not objectionable. The hard question is how many people are ordered to be detained, and how high the risk of danger should be before someone is detained. Insofar as bail reformers are upset with the backlash, it is because they disagree with judges' decisions of how dangerous a person must be to justify their pretrial detention. That's a difficult normative question so no surprise that we'll have disagreement. But at least now we are debating the real issue instead of using money bail as a sort of hidden detention order that does not require judges to own their decision to detain.

Using money bail to detain dangerous defendants simply obscures that hard question, and shifting to detention orders is an improvement in that it at least forces us to face the hard question directly.

Also this post does not really distinguish between money bail used as an incentive for people to show up (it can do that well for people who have money, but cannot do so for people without money, except insofar as it functions as a detention order) as opposed to money bail used as a way to protect the community from dangerous defendants.

In this latter context of dangerousness, money bail is of no use at all except as a de facto detention order. If the defendant can afford the bail and is released, his dangerousness is not reduced by the fact of the money bail. If he cannot afford the bail, well then yes, the public is protected (at the cost of his liberty). That is indeed a difficult trade-off, but again money bail serves only to obscure the choice related to dangerousness, and it does nothing whatsoever to alleviate dangerousness.

mpowell

This is a great response. The long and short of it is, setting bail that cannot be paid never makes sense. Either detain the person without bail or give them an affordable bail that puts pressure on them to show up. If too few people are showing up or too many people are being detained without bail, you can have a more explicit discussion about follow on policy steps. Unaffordable bail as a policy simply does not make sense. If you want to defend the current system, you need to come up with a novel argument why unaffordable bail is actually superior to detention without bail. Is it some kind of public perception argument?

Anonymous

What if you have a suspect who you would normally release on money bail, but you think he is poor and any bail you would set that he could pay would not be sufficient to incentivize him to show up? Maybe you set a money bail anyway and hey, maybe he can pay it. If not, well without the bail incentive maybe he should be in jail to ensure he is there for trial.

mpowell

The question is if you don't think he should be released, why risk him making bail if that's not what you want?

The only way I can see this making sense is if you have someone who is fairly poor and you think the bail amount they can 'afford' won't provide enough assurance they will show up for trial. But that's a pretty dubious scenario.

Anonymous

Boonton

Well it is part of the discovery process. A person may be poor but if he can get family and friends to contribute $500 for the 10% to the bondsman for a $5,000 bail, that says something about him. It also puts some pressure on him since if he does skip out he is not just screwing 'the system' but those who put money up on his behalf.

So in essence the judge isn't going to be able to know this just chatting with his defense attorney for 5 minutes nor is the judge going to really be able to learn this by just hearing his family and friends swear he's a great chap who will show up. Ideally the bail then acts as 'skin in the game' that signals to everyone he is entitled to some measure of trust.

A high bail, then, could be a case of a judge not wanting someone she knows is a danger being loose. But it could also be an invitation to signal from those that really know him whether he is worth putting their savings and homes at risk.

It's kind of interesting I'm hearing a lot of stories about China's new 'social system' where you can be denied all sorts of things like access to public transportation if you're deemed an 'untrustworthy person' by their combination of Facebook profiles with credit scoring. With bail something very much like that is happening except it lacks the precision of a 'score'. It nonetheless is a type of market test...."hey everyone can we get 10 people to chip in $50 for Jimmy...or 2 people to chip in $250?' If the answer is no might that say something about Jimmy you couldn't gleam from the bench with just 5 minutes to make a decision?

mpowell

So this becomes an argument in favor of a system that does have a reasonable occurrence of people whose bond is too high for them to afford - where afford is narrowly defined regarding their own personal financial resources. I'm not sure judges will be doing a good job on the balance, but it is definitely the right form for the argument to take.

Boonton

What I would say is we should reform bail by basically making it the norm that people who are deemed high flight risks are kept in custody and others are released either with monitoring or on their own word.

I would then say those denied release or those who are required to wear ankle bracelets can have the option to be heard by a judge for bail consideration under the old system. Then the judge has the option to grant bail and the person can pay it.

Viking

Regarding speedy trial, the elephant in the room is the disproportionate amount of resources available to the prosecutor. If he can't make his case to the jury instantly, and with similar resources as the defense, why should the case be prosecuted? If the case is so complicated that it takes a prosecutor a year to prepare, isn't that by definition reasonable doubts? Also, if I listened to a witness telling me a story a year after an event, that is automatically reasonable doubts in my mind, given the known imperfections of human memories. Also, in one year, I would expect a proper evidence chain of custody audit would be impractical, as literally hundreds of potentially dirty cops might have been in the evidence locker.

Sure

Often the accused does not fall neatly into boxes. For instance the accused reports "hearing voices". Does this mean they are psychotic and lack capacity? Well now you need a forensic psychiatric evaluation. But maybe the DA's friendly psychiatrist has a high threshold for psychosis (which is ultimately a subjective threshold). So you have to let the defense do their own evaluation. But in low population density areas that may mean transporting the accused or the defense's forensic psychiatrist to another location. This whole process can take days and most of that time is there to ensure the rights of the accused are not violated.

Likewise, the accused may have enough money for his own lawyer at one point, but then not (e.g. a sudden divorce proceeding is not uncommon after charges are made). This means you have to swap to a public defender and time is needed for them to come up to speed. Conversely a public defender case can attract pro bono defense (e.g. the ACLU) which then again leads to delays.

Then come to troubles that much crime is not a solitary affair. Do you charge family members who "knew" and said nothing? Do you charge people who loaned the accused a car that he used to commit the crime? This involves sorting out all of the potential defendants, their legal representation, and their defense strategies.

Then there is exculpatory evidence. If you uncover anything as a prosecuting attorney that might tend to exonerate the accused. Once the defense gets these disclosures, they need time to see if they are worthwhile bring up in their defense. For instance it is not uncommon for homeless people to confabulate witness accounts that might exonerate the defendant. The defense needs time to establish if this account might sway a jury or be seen instantly as not credible (e.g. the witness admits to being high on drugs and makes objectively false statements in addition to exonerating the defendant).

Likewise, memory does have trouble over time, this is why we delay trials and allow both sides to take affidavits and question witnesses before the high emotions of the trial. Again, each of these sworn depositions requires that both sides have the opportunity reevaluate strategy in light of testimony.

A lot of the delays in the legal system are actually built in so that the prosecution protects the rights of the accused. If you want truly speedy trials you remove a bunch of the burdens on the prosecution and a bunch of the options for the accused. It would be less just, but it would be quicker.

Alex Fan

Once again technology solves problems. In a lot of progressive jurisdictions they're just slapping GPS bracelets on everyone. Also a lot of states have a separate avenue called "dangerousness hearings" for holding the truly dangerous like Dylan Roof without the possibility of bail.

Nate F

I had never really heard about the bail reform movement. But, I do think punishment for low level offenses should either be jail or a fee. By that I mean, I do think its "unjust" that someone gets a weekend in jail and then slapped with $500 in court costs. If society deems the activity worth paying $500 to stop, society should pay it. Otherwise, it runs the risk of society tossing people in jail for things they deem not actually worth a tax dollar to stop (because they can fine the guilty).

McMike

As you hint at with the speedy trial issue, bail is merely an early interaction with a deeply broken system- just the first stop on a long train of abuse - and one in a system that blurs violent and nonviolent offenses, and disproportionately favors people with money

matt

The concept of cash bail as a 'halfway house' rests on the assumption that the bail is an effective incentive to not commit crimes in the mean time, and to turn up to trial. The first part seems quite dubious, especially for people close to backruptcy accused of impulse control crimes. The second part there has some evidence for it, but most of it seems to be in the vein of bail bondsmen calling to remind defendants about court dates, helping them understand the complicated legal proceedings, and a lot of other things that ideally should be done by public defenders.

Nicholas

There are several critical errors in Alex's logic. First: the assumption judges are somehow infallible in their assessments of defendant dangerousness. Criminal judges have been reduced to a branch of the prosecutor's office, spending most of their time facilitating the plea bargain mill, unafordable bail is a tool used to pressure defendants into pleaing before they lose their car, house, and all other worldly possessions, a point we'll come back to.
Second: if judges really think someone is dangerous, why is high bail a desirable outcome? High bail does 2 things: it still deprives poor defendants of their liberty when they're innocuous, and it still allows dangerous defendants to roam free when they're rich. Neither of these outcomes seem socially desirable. I would argue high bail isn't a squishy middle for defendants, who can either afford it or not, it's a squishy middle for judges who don't want the political heat of denying bail, but who fear (unreasonably so) letting anyone out on bail because they face the same incentives as parole boards.
Third: it would be very difficult for a trial at any speed to be speedy enough to matter for most Americans today. They don't own their car or their home, and they have almost no savings. Being held pretrial for many modern Americans wouldn't deprive them of some months' wages, it would deprive them of almost everything they own in the world, and that's before they get their day in court.

McMike

Actually, spending a month or three in jail pre-trial would pretty much ruin anyone's life who has a job and/or family. Even if they can float the mortgage payments, they will come back to a seriously disrupted family, financial, and job situation.

Anonymous

I think the reality is that money bail is a half-way option for those with sufficient money. For the poor, there is no such half-way option so the choice has to be made between detention and release which will result in more being detained. But you may not always be able to tell someone's financial condition as a judge- there may well be incentive to plead poverty.

Joe

I don't really understand your argument. I think you're assuming that a higher bail amount actually somehow reduces the probability of "misbehavior" of whatever kind by the defendant after release? Is there strong evidence for this?

That is, what do you mean when you say that money bail lets judges release more people? Are there people who are "unsafe" to release but become "safe" to release in response to a sufficiently large cash bail amount?

Unless there is a meaningful "treatment effect" associated with bail, it should be eliminated. If judges think that someone is too dangerous to release, they should be held without bail (as is indeed nearly always the case for someone like a mass shooter). Imposing a sham amount of "unaffordable" bail is immensely problematic because a) it's unfair and b) it creates the risk that the judge will estimate wrongly and "unsafe" individuals will be released because they found a way to afford the bail.

It's totally strawman to suggest that anyone thinks all defendants should be released pretrial, but unless posting bail has some meaningful effect on subsequent behavior, the right way to handle this is just to either release defendants or hold them without bail.

Tony

McMike

As many have pointed out above, if the purpose is to keep potentially violent people off the street, then make the argument that they need to be kept off the street.

If the purpose is to get them to show up for trial, there are other ways: from means-tested bail to electronic monitoring to greater resources for police/tracking (i.e bounty hunters).

In the future, we can just assign a satellite to track people out on bail, and if the AI determines they are about to commit another violent crime, then Wham-o, their ankle bracelet delivers a shock or debilitating drug or something.

Adam

Setting a high bail that a defendant cannot pay is a cop out. A judge who is doing that should instead deny bail. When a judge does that, he is setting up circumstances that necessary lead to disparate treatment. Those with more resources than the judge realizes unexpectedly post bail while those who are less fortunate stay in jail. There's no reason for that disparity if what the judge intends is to effectively deny bail. Just do it and take responsibility for it.

Alex is right about the trade off. The question should be public safety, not financial resources.

Bail must necessarily be biased against poor people, if the amount is to be sufficient to properly compensate society and/or the victims. Bail bonds should not be permitted, because it also penalizes the not guilty.

DeservingPorcupine

It's weird so many people favor a strict no-bail-or-affordable-bail policy. Assuming the lending market for bail is at least somewhat competent at determining credibility, the current approach allows some people who the judge has incorrectly determined to be too irresponsible to release to get out.

byomtov

Mzuzu wa China

Long post for simple argument. You say trust judges, the other side doesn't. Deal with the trust issue. Speedy trial arguement is pie in the sky nonsense dodge. How do we rebuild trust? That is the hard issue acrosso so many issues that everyone is dodging

Transnational Pants Machine

Dear God, man. There is no man more intellectually lazy than the man who suggests ankle bracelets... for damn near anything.

Question: after a man has committed his 3rd, 6th, 12th murder while wearing an ankle bracelet, does he keep getting additional ones? How many can one man wear? Do we have to shift to arm bracelets, neck bracelets and so forth, eventually?

Speedy trial -- yes that would be huge, but your Dems are 100% run by lawyers who are paid hourly, so good luck with that.

The real answer is that bail amounts should be set with the "likelihood of guilt" in mind, and don't tell me that's outrageous. The decision to prosecute, as well as Grand Jury decisions, are also based on this.

Jamiel Allen

The premise of the article is correct but the argument is just as misleading as the framed argument for bail reform. The legal system is typically slowest to change and adoption of technology. The Risk assessments referenced are fairly new and statistically validity of the utilized measures are still underway. Also, the term violent offender can sometimes a technical legal meaning outside of the common sense understanding of violent (i.e. a drug offense where no violence is used or a categorically "violent" offense where no use of violence was used).

I would argue the unaffordable bail argument doesn't apply to all bail amounts. Bail set at the 100s or 1000s dollar amount for misdemeanors or offenses where violence was not used against indigent clients is an issue. The criminal justice system charges a large number of indigent people who get appointed counsel. That is the primary issue that bail reform seeks to address.

Finally, putting teeth into speady trial is laudable. However, such an endeavor would be catostrophic unless the current grand jury charging method and prosecutorial discovery rules are reexamined. Even now their are vast differences between Federal and certain State discovery obligation.

Again, the premise of this article is thoughtful, but the examination of the issue does not appear to be critically examined.

Kevin

Admitted bail reformer here. I believe the argument that the reduction in the pretrial Cook County Jail population hinges on deeper evidence for this claim: "judges soon discovered that the cost of releasing defendants in terms of crime, failure to appear, and perhaps bad publicity was too high so they started to ignore the demands of the Chief Judge."

Does the author have any evidence of these, whether public statements from the judges, or statistics on the underlying phenomena?

While many factors contribute to murder and shooting rates, consider that homicides and shootings are down compared to 2017, and have been dropping each month. (The judge's order was announced and implemented in the fall of 2017). In December, the jail population was down 25% compared to September, largely due to bail reform.

So, if thousands more accused are walking free each month without triggering a record crime wave, where is the evidence of the cost of bail reform "in terms of crime"?

I would be eager to know about tradeoffs of bail reform. I would hope that an author of an economics blog would quantify rather than handwave about them.

The final thing I would plead each reader, and the author, to consider, is to find a way to visit a jail or prison and seriously reconsider how lackadaisical we as a society have become about putting human beings in cages.

Dennis

Your use of Dylann Roof as an example of one who should not be allowed to go free is a bad example, because no amount of bail would suffice to allow him to go free, either.

In fact, he was denied bail.

You need to use an example of a crime heinous enough that the person should be required to pay out good money if he skips, but not so heinous that bail is not even a possibility.

As is, you are arguing that bail is necessary to keep criminals like Dylann from skipping, but neglecting the fact that he's not an example of a bailee, but of someone denied bail altogether for that exact reason.